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State v. Garcia

Court of Appeals of Oregon

October 10, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
MARCELINO GARCIA, Defendant-Appellant.

          Argued and submitted January 19, 2017

          Tillamook County Circuit Court 091071; Jonathan R. Hill, Judge.

          Lindsey J. Burrows, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Offce of Public Defense Services.

          David B. Thompson, Assistant Attorney General, argued the cause for respondent. Also on the briefs were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Ortega, Presiding Judge, and Egan, Chief Judge, and Allen, Judge pro tempore.

         Case Summary: Defendant challenges his convictions for multiple sexual offenses, asserting that the trial court erred in admitting evidence of uncharged sexual misconduct and evidence that defendant threatened to kill one of the victims and her mother after the victim's mother reported the sexual abuse to the police. On appeal, defendant argues that (1) the uncharged sexual misconduct was inadmissible propensity evidence and it was substantially more prejudicial than probative, and (2) the threat evidence had little relevance because the threats were made after the abuse was reported and it was therefore unduly prejudicial because it suggested that defendant was a dangerous person. Defendant also asserts that the trial court failed to balance the probative value of the evidence in both instances against the danger of unfair prejudice to defendant. Held: The record does not refect that the trial court conducted balancing required under OEC 403, the lack of which requires a limited remand so that the trial court can conduct such balancing.

         Reversed and remanded.

          [294 Or.App. 329] ORTEGA, P. J.

         Defendant challenges his convictions for multiple sexual offenses, asserting that the trial court erred in admitting evidence of uncharged sexual misconduct and evidence that defendant threatened to kill one of the victims and her mother after the victim's mother reported the sexual abuse to the police. On appeal, defendant argues that (1)the uncharged sexual misconduct was inadmissible propensity evidence and it was substantially more prejudicial than probative, and (2) the threat evidence had little relevance because the threats were made after the abuse was reported and it was therefore unduly prejudicial because it suggested that defendant was a dangerous person. Defendant also asserts that the trial court failed to balance the probative value of the evidence in both instances against the danger of unfair prejudice to defendant. We write only to address whether the trial court conducted the required OEC 403 balancing[1] and, concluding that it did not, we reverse and remand in the limited manner described in State v. Baughman, 361 Or. 386, 411, 393 P.3d 1132 (2017).

         "In reviewing a trial court's application of OEC 403, we begin by summarizing all of the evidence and procedure related to the trial court's ruling." State v. Kelley, 293 Or.App. 90, 91, ___ P.3d ___ (2018). The state alleged that defendant committed numerous sexual crimes against his niece, C, and his nephew, A. The charges involving C were for incidents that occurred on a regular basis beginning when C was nine until the day before she turned 18 years old. As for A, the charges were for crimes that occurred beginning when he was 12 years old to the day before he turned 14 years old in 2007, and, on May 25, 2009, when As mother, Rivera, reported the sexual abuse. Defendant moved in limine to preclude the state from introducing evidence of (1) sexual acts between defendant and C that occurred after C turned 18 years old until she was 22 years old; and (2) sexual misconduct that occurred for the greater-than-two-year period between As fourteenth birthday and the [294 Or.App. 330] incident that occurred on May 25, 2009. Defendant also moved to exclude evidence that defendant had made violent threats against one of the victims and against Rivera.

         In response to defendant's motion, as to the uncharged sexual misconduct, the state primarily relied on State v. Stephens, 255 Or.App. 37, 296 P.3d 598, rev den, 353 Or. 868 (2013), to argue that the evidence was relevant and admissible under OEC 404(3).[2] In Stephens, the defendant, an elementary school teacher, was convicted of sexual crimes against the victim when the victim was a student in the defendant's fourth to sixth grade classes. Id. at 39. The victim did not report the abuse until he was 17 years old. Id. We affirmed the trial court's admission of evidence of uncharged incidents of sexual contact with the victim for two reasons. First, in a case "involving charges of sexual abuse of a child where the reporting was significantly delayed, evidence of sexual contact that is not charged is relevant to explain that delay; the existence of a long-term 'relationship' provides relevant context." Id. at 45-46 (citing State v. Zybach, 308 Or. 96, 100, 775 P.2d 318 (1989)). Second, "when the uncharged conduct and the charged crimes involve the same child, evidence of the uncharged conduct is relevant 'to demonstrate the sexual predisposition this defendant had for this particular victim, that is, to show the sexual inclination of [the] defendant toward the victim, not that [the defendant] had a character trait or propensity to engage in sexual misconduct generally'" Id. (quoting State v. McKay, 309 Or. 305, 308, 787 P.2d 479 (1990)). In this case, the state argued that Stephens was directly "on point" because evidence of "uncharged acts of sexual abuse against the same victim are relevant to demonstrate the sexual predisposition" defendant had for A and C.

         Defendant responded as follows:

         "A more concerning issue, Your Honor, is the State's desire to introduce uncharged prior bad acts in this case.

[294 Or.App. 331] And it's particularly concerning because these are prior bad acts which a jury could mistakenly infer is action in conformity, and that is the most dangerous type of evidence that can be introduced to a jury because I think it allows some jurors to no longer have to hold the State to their burden of proof; that is, hold the State to prove the elements of the charges in the indictment but rather to rely on other evidence to support that ...

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